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A Lawyer Connection
Sunday, October 09 2005 @ 06:18 PM EDT

I was doing a little research yesterday, and I came across the 1998 Order [PDF] in the litigation Darl McBride brought against his then-employer, Ikon, and I was noticing that, oddly enough, Judge Kimball was assigned to that case too. Then I noticed something else. Guess who Darl's lawyer was? Jones, Waldo, Holbrook & McDonough.

Do you remember them? If you check our The Cast page, where we have all the law firms in this SCO litigation frenzy listed, you will find Jones, Waldo . The firm represented Maureen O'Gara's company, G2, along with CNET and Forbes, when they unsuccessfully tried to intervene and unseal in SCO v. IBM.

For history buffs, here's G2's Motion to Intervene, and the G2, CNET, Forbes Reply Memorandum in Support. CNET and Forbes hopped on board with G2, as you'll recall. SCO didn't oppose the intervention but opposed opening up all sealed documents. By then, SCO had attached the IBM emails they kept leaking all over the place to a court filing, so it probably wasn't so urgent to them to get the December hearing transcript unsealed. That, in my opinion, was by then more an O'Gara personal quest. IBM opposed. And Judge Kimball denied the motions.

Now, this is not a smoking gun in the sense of proving anything, but it sure makes me go hmm. It's not against the law to share a lawyer, or to refer someone to a lawyer who helped you in the past. I suppose it's perfectly normal to call a friend who lives in a state where you don't live and ask for a referral if you are wanting to file a motion in litigation in that state. But are O'Gara and McBride such good friends as all that? And were they coordinating on this? Or was it just a freaky coincidence, as in the Casablanca "Of all the gin joints in all the towns in all the world, she walks into mine" variety?

Are there any rules for lawyers? I know that where I've worked and for all firms I know of, the first thing the firm does, on being asked to represent someone, is to check that there are no conflicts of interest. I asked Marbux what he thought:

I think it raises a justifiable suspicion, given MOG's obvious bias and indications that she seems to have been getting insider information from SCO.

Even if the fact were established, I don't think it would be enough to create a conflict of interest under the disciplinary rules because Darl is not a party to the SCO v. IBM case. If he were, then the firm might have been required to obtain Darl's written informed consent in order to represent O'Gara because her position would be adverse to Darl's (it's conceivable they took that step in any event as a precaution). That assumes that Darl would have taken the same position as SCO in regard to the relief she was seeking.

If I were in the firm's shoes I would have declined to represent her absent an express waiver of rights by Darl because I didn't want to get in a position where such issues were even arguable.

But I don't think conflicts are of much interest in this situation except for the possibility that O'Gara was actually acting as SCO's undisclosed agent in the intervention. Were that the situation, it would raise an issue whether Rule 17(a) had been violated, see http://www.law.cornell.edu/rules/frcp/Rule17.htm, and whether SCO abused the court's process by maintaining an action (the intervention) where the parties were not sufficiently adverse, an issue of standing. There is a long line of cases holding that sweetheart lawsuits are impermissible because they are shams. It would raise a lot of other legal issues too. Generally speaking, judges don't like having the wool pulled over their eyes and have an array of weapons to use when they find out somebody did.

Of course, it's moot now, in any case, regardless of what the truth is, because their motion to intervene was denied, even without any of us noticing the lawyer connection. That doesn't mean the Judge Kimball doesn't remember, though, does it? He's seen Darl before and his then-attorney. He doesn't have to research this history, because he was there.

At first, I thought I wouldn't even mention the lawyer in common, then, since no firm conclusions can be drawn, and it's a small fact. But then I decided to just put the new information in our permanent collection, small though it is. One thing I have learned from doing Groklaw: there is power in information, because what you don't know, someone else does, and you truly never know when or who or how dots will get connected in unanticipated ways, if you just put it all out there.


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